Reflections on an Anniversary: EU Citizenship at 20

I am writing this 20 years to the day after the Maastricht Treaty entered into force on 1 November 1993. ‘Economic and monetary union’ and ‘political union’ (coordinating foreign policy and ‘justice and home affairs’) were the main events. The Treaty also grandly announced: ‘Citizenship of the Union is hereby established’. The status was for those ‘holding the nationality of a Member State’. The rights attached were largely pre-existing and politically underwhelming. Without great fanfare, the weightiest of political concepts was uploaded into the EU Treaty, apparently an afterthought.

EU citizenship status is Janus-faced, drawing on existing rights, but promising much more. The original European Economic Community (EEC) (1957) was a common market, aiming to liberalise not only trade in goods and services, but far more ambitiously, the movement of capital and persons in the capacity of economic actors. The drafters didn’t anticipate the next moves: having created a court with real clout, it got to work quietly but effectively. ‘Free movement’ for workers between EEC states, while not availed of in massive numbers, was legally enforceable. The Court insisted that migration was not subject to executive discretion, but a right, with few bureaucratic hurdles. Governments lost many early cases (a common pattern in Euro-law), failing in attempts, for instance, to keep public sector work out of bounds to EEC migrants. ‘Work’ was broadly understood, and no income or skills tests permitted. The Treaty freedoms embraced the mobile student and guaranteed her equal treatment in some domains, in particular fees for tertiary education (a right a US citizen cannot expect on moving residence from, say, Texas to California). Other equality rights followed, with legislation interpreted generously and exceptions strictly construed. In a community of just six or nine countries, migration of ‘fellow Europeans’ seemed untroubling.

When Greece, Spain and Portugal joined, transitional periods were included, a precursor to the more controversial transitional constraints accompanying the enlargement of 2004, which brought an additional ten states, with almost 75 million people, into the EU. For many migrants from these countries, EU enlargement meant instant regularisation and greater security of their rights of residence in the countries where they were already living. Many left and went home, safe in the knowledge they could return. The EU is the world’s circular migration laboratory.

With the creation of EU citizenship came expectations. Why should transnational free movement be the central right? Isn’t it odd to put leaving one’s country as a prerequisite for citizenship rights? Why valorize leaving over staying? Even within the ‘free movement’ frame, the privileging of the ‘economically active’ sits uneasily with citizenship’s inherently egalitarian inclusivity. Requiring health insurance and ‘sufficient resources’ to enjoy residence rights seems to privilege the already privileged, and suggests that equality with national citizens was elusive. An awkward compromise is reflected in current legislation and case law, with full entitlement to social benefits being accrued over time. The freshly arrived job-seeker or student cannot claim all that the local welfare state offers its own, notwithstanding populist scaremongering about ‘benefit tourism.’

In the larger EU, free movement has become more fraught. EU migrants are subject to anti-migrant sentiment. For all its legal robustness, EU citizenship has failed to protect the most marginalized. The ongoing forced evictions of Roma (including EU citizens) from France and Italy defy legality, both EU and human rights. Initial reports of mass expulsions of Roma were met with horror, but no legal actions were taken.

No less troubling are tensions between EU citizenship and nationality law. Leaving it to states to decide who gets EU citizenship paradoxically asserts national sovereignty. Indeed, for those who seek to understand the EU as a polity, it begs confederal analogies. EU citizenship is capable of exerting a restrictive pull on nationality law. For example, Ireland removed the constitutional right to citizenship for children born on the island of Ireland, partly in response to concerns about the ‘abuse’ of this provision by families seeking EU citizenship for their offspring. Suggestions that the EU should have common standards on naturalization are consistently rejected, in favour of a much less secure denizenship type status created by EU directive. The EU remains a polity in which not all of its long-term residents participate equally.

Meanwhile, nationality law has become a means for member states to seek out the migrants they want, and repel others. So when Italy confers nationality on EU migrants drowned on its shores, making them posthumously Italian, the gesture is not so much empty as restorative of statist order. And while Malta is condemned by the Strasbourg court for detaining asylum seekers who arrive by boat, it simultaneously announces that it will expand ‘investor citizenship’. Bulgaria too sells EU citizenship to investors, without even a maintaining a pretence that they will actually live there. It is easy to obtain EU citizenship for some, at a price. There are hints that these practices will prompt a legal reaction in EU law, but thus far, the EU has largely obscured underlying questions of who is a citizen.

The most energized legal shenanigans have concerned non-EU (so called third-country national) family members of EU citizens. EU law allows EU citizens to reside together, irrespective of the family members’ nationality. That this has become the most litigated of EU citizenship rights reflects the restrictive national turn, when family formation migration of states’ own citizens was seen to involve too many ‘others’. EU law came to the rescue for many, giving them a right that trumped domestic immigration control. Governments sought to restrict the EU rights, and much litigation ensued.

For some wishful thinkers, EU citizenship is the ultimate in post-national status. The EU Court speaks of it as ‘destined to be the fundamental status.’ However, citizenship remains predominantly transnational, although no longer intractably so. The tensions are best exemplified in the EU case of Zambrano (Case C-34/09, 2011). The Zambrano children’s EU citizenship status (by virtue of their birth in Belgium), created EU rights for their parents (or at least for their father on whom they were financially dependent), not just to live but also to work in Belgium. The Zambrano children’s rights did not depend on their having left Belgium to enter the EU legal space. The parents had lived in an all too familiar legal limbo, as rejected asylum seekers with precarious humanitarian leave to remain. The scope of the ruling continues to be litigated. The Belgian response: restrict nationality so children in that scenario would no longer become Belgian by virtue of birth in the territory. Without that nationality, EU citizenship is irrelevant. In this respect, EU citizenship is revealed as not post-, but hyper-national.